[도로점용료부과처분취소][공1998.11.1.(69),2587]
[1] The meaning of the road occupation and use as a requirement for collecting unjust enrichment equivalent to the road occupation and use fees under Article 80-2 of the Road Act (=special use)
[2] Criteria for determining whether a road is used specially
[3] The case holding that the owner of a commercial apartment building installed in a space below a road is specially using a tunnel-type road at regular intervals between the prop arranged at regular intervals in the first floor space above the ground
[1] The term "road occupation and use" as stipulated in Article 40 of the Road Act refers to the so-called special use, which uses not only the surface of the road but also the specific part of the underground or ground space for a tangible and fixed purpose, separately from the general use of the road for public use, so long as the contents of occupation and use of a road without permission fall under such special use, it may collect unjust enrichment equivalent to the occupation and use fees of the road pursuant to Article 80-2 of the Road Act.
[2] The special use of a road is not necessarily an exclusive and exclusive use, but it is possible to coexist with the general use of a road according to its purpose of use. In such a case, it cannot be said that the part of the road occupancy is used at the same time for the traffic of the general public.
[3] The case holding that the owner of a building specially uses a road on the ground that a commercial apartment building on the 17th floor and the 17th floor above the ground is installed in a space below the road, a prop is arranged at a certain interval in the 1st floor space above the ground, and a roadway is installed in the center of the tunnel-type space, and a parking lot and outdoor entrance stairs are installed both in both sides, the above road is mainly used for the use of the above building and for the passage and parking of vehicles, and the head of a local government is merely using it for the general vehicle traffic, pedestrian parking, etc. to the extent that it does not interfere with the exclusive and exclusive control of the owner of the building
[1] Articles 40, 43, and 80-2 of the Road Act / [2] Articles 40, 43, and 80-2 of the Road Act / [3] Articles 40, 43, and 80-2 of the Road Act
[1] [2] Supreme Court Decision 90Nu8855 delivered on April 9, 1991 (Gong1991, 1387) Supreme Court Decision 94Nu5830 delivered on February 14, 1995 (Gong195Sang, 1347)
Daeil Construction Co., Ltd. (Dongyang Joint Law Office, Attorney Maximum Mine- Rate, Counsel for the plaintiff-appellant)
The head of Jongno-gu Seoul Metropolitan Government (Attorney Park Jong-soo, Counsel for defendant-appellant)
Seoul High Court Decision 94Gu16849 delivered on April 16, 1996
The appeal is dismissed. The costs of appeal are assessed against the plaintiff.
The grounds of appeal are examined.
On the first ground for appeal
Examining the reasoning of the judgment below in light of the records and relevant Acts and subordinate statutes, the court below's rejection of the Plaintiff's assertion that the Defendant agreed to waive the exclusive, exclusive, and exclusive rights to use and benefit from the part of state-owned or public land (hereinafter the road in this case) of the road where the apartment building of this case is located is just, and there is no violation of law such as misunderstanding of legal principles as to the waiver of rights to use and benefit as pointed out, and the Supreme Court's precedents that are in the grounds of appeal are different from the case and purport
The grounds of appeal cannot be accepted.
As to the second and third points
The term "road occupation and use" in Article 40 of the Road Act refers to the so-called special use of roads used for a specific purpose, as well as the surface of the roads, which are commonly used for the traffic of the general public, separately from such general use. Thus, it is possible to collect unjust enrichment equivalent to the occupation and use fees of roads pursuant to Article 80-2 of the Road Act only when the contents of the act of occupying and using roads fall under the above special use. Special use of roads is not necessarily exclusive or exclusive use, but it is possible to coexist with the general use of roads according to its intended use. In such a case, the occupation and use portion of roads are also being used for the traffic of the general public (see, e.g., Supreme Court Decisions 90Nu8855, Apr. 9, 1991; 92Nu14021, Jun. 11, 1993; 94Nu580, Feb. 14, 1995).
According to the reasoning of the judgment below, the court below acknowledged that the apartment building of this case was installed in the upper and lower space of the road, and the commercial buildings and offices of the building from the second to the fifth floor above the road, the apartment buildings of the sixth to the 15th floor above the ground, and the 165th floor above the 16th floor above the ground, and the road of the first floor is arranged in the middle of the tunnel-type space, and the parking lot and outdoor entrance stairs are installed in both sides. The road of this case is used as the site of the building of this case with other co-owners or co-owners of the above building, and the defendant merely uses it for the purpose of determining exclusive traffic, pedestrian parking, and parking of the 15th floor above the 15th floor above the 16th floor above the 16th floor above the 1st floor above the ground, and there is no error of law by misapprehending the legal principles as to the road occupation and use fees of this case as prescribed in Article 80-2 of the Road Act.
The grounds of appeal pointing this out are not acceptable.
Therefore, the appeal is dismissed, and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.
Justices Seo Sung-sung (Presiding Justice)